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Army Demands Carolina Beach Comply With Land Lease By Dec. 31

The Town's garage located at their Operations Yard off Dow Road. The Town was notified earlier this year by the Army they need to comply with a 1972 lease and remove the majority of uses including the garage.

Managing Editor

CAROLINA BEACH - Decades ago the Town of Carolina Beach leased land from the U.S. Army to construct a wastewater treatment plant. Earlier this year the Town was notified they are in violation of the lease terms by using the land for uses not permitted in the lease. They have until the end of the year to comply.
The Town of Carolina Beach "Operations Yard" is located off Dow Road on land leased decades ago from the U.S. Army.
Following an inspection last year, the military informed the Town in April their use of that land was largely in violation of the 1972 lease.
That lease only permitted a wastewater treatment plant, a storage building and related uses. At their June 12, meeting the Council approved $100,000 to fund efforts to comply with the original conditions of the lease.
The property currently houses the Town's Operations Department including public works, public utilities, storm water department and the Town's garage. Additionally, it's home to a greenhouse and various office and storage areas.
The Army is demanding the Town comply by the end of 2012.
The "buffer zone" is land owned by the U.S. Army for the Military Ocean Terminal at Sunny Point (MOTSU) across the Cape Fear River in Brunswick County. The port deals in ammunition and the buffer zone serves as a "blast zone" in the event of an incident. The zone covers the largest area of land west of Dow Road in Carolina Beach, Kure Beach and Fort Fisher.
On November 7, 2011, Sunny Point officials inspected the Operation's yard and other areas of the buffer zone used by the Town. A letter date January 19, 2012 was sent to Carolina Beach Town Manager Tim Owens providing a copy of the inspection report.
The Town sent a letter back outlining improvements noted in the Army's inspection report.
On April 13, Cindy B. Turner, Savannah District, Deputy Chief, Real Estate Division for the Army Corp of Engineers wrote to the Town, "Pursuant to Condition No. 6 of the subject lease, compliance inspections of the leased premises were conducted on November 7, 2011 with a follow-up inspection on March 22, 2012, by my staff and Mr. Michael Fuller of Military Ocean Terminal, Sunny Point. Both inspections identified deficiencies regarding the use of the leased premises. During the follow-up inspection the recent construction of a water retention pond to collect contaminated water runoff adjacent to the dumpsters was noted. It is evident that the lease site is being utilized for operations that do not comply with the terms and conditions of our lease."
Turner explained the 1972 lease states, "The area will be used for construction and operation of a sewage treatment facility and necessary appurtenances and the construction and maintenance of a 40' x 100' storage building and fenced outside storage area."
She explained, "A review of our files shows multiple requests by the Town of Carolina Beach and subsequent denials for permission to relocate the town's public works area, utilities equipment, parking area, supplies and materials to this lease site."
The Town was given until the end of June to present a plan for compliance to remove items stored for auction, multiple storage buildings, FEMA trailer, marine vessels, generators, undercarriage water station, maintenance shop and multiple dumpsters and retention pond. That must be finished by the end of the year. That plan was submitted to the Army by the June deadline including a resolution adopted by the Council at their June 22, meeting to send along with the corrective action plan.
That resolution stated the Town will spend around $200,000 to make corrections and comply. It stated, "The Town contends that it has historically and with the knowledge by leaders at the Military Ocean Terminal, Sunny Point, operated all aspects of a public works, storm water, waste water treatment plant, water and waste water collections operation."
In the resolution the Town claims limited funds and limited options for relocating to other land suitable for construction of public works facilities, and have limited potential to rent available space for the operation of a public works facility.
The Town requested that officials at Sunny Point consider approving a lease amendment for the "historical uses that have been permitted in the leased area" and, "An amended lease is extremely important to the Town given limited availability of tracts large enough to accommodate a public works facility in Carolina Beach and the cost of acquiring the land."
According to the plan submitted to the Army, the Town will take corrective actions requesting progress meetings at regular intervals and be finished by December 31, as ordered. They will also request a 50-year extension to the original lease.
Town Manager Tim Owens indicated to Council the difficulty of meeting the December 31, time-line and the expense of obtaining various permits required to relocated various operations from that property.
A Sunny Point official informed the Town they are 18 months away from the lease expiring and the way the Town is currently using the leased land does not appear to be an activity that will be favorably considered either locally or up the chain at the Pentagon or the Secretary of the Army's level. They cannot modify that activity to allow renewal of the lease at this point and have not researched other requirements concerning military buffer zones.
On Monday July 2, Town officials toured the Operations Department with representatives from Congressman Mike McIntyre's office in an effort to educate the Congressman on the issues in hopes they can call upon his assistance at a later date.
On July 6, after receiving the corrective action plan from the Town, Ralph Werthmann, Chief of the U.S. Army Corp of Engineers, Savannah District, explained in a letter to the Town they had received the Corrective Action Plan and, "I am returning your submission without action. The submitted plan does not adequately address the primary reason for non-compliance which is, use of the leased premises for activities not authorized by the lease. Any increase in the currently approved use within the lease area is prohibited. Carolina Beach's proposal to pursue and/or correct all deficiencies only after a response to the Corrective Action Plan is provided is in violation of the terms and conditions of the current lease document as supplemented."
Werthmann explained, "During the telephone conference of May 31, 2012, town representatives were made aware that any activities outside those authorized could not be favorably considered. Over the past thirty years, the Government has received and disapproved multiple requests from the Town of Carolina Beach for additions to the lease area. As one example, I have enclosed a copy of a letter dated, January 28, 1987, from the Deputy Secretary of the Army for Environment, Safety and Occupational Health to Congressman Charles Rose in response to a similar request from the Town of Carolina Beach."
Werthmann explained, "You will note in the response that Title 10 U.S. Code 172 sets legal requirement for the Armed Forces regarding ammunition supplies. Various implementing regulations and guidelines require these restrictions to ensure that known hazardous conditions, endangerment of life and property inside and outside of military installations are avoided."
He explained, "I therefore urge your immediate action to remove all unauthorized structures and cease all unauthorized activities and occupancy in and upon the leased premises. I also request correction of all deficiencies as noted during the compliance inspections. It remains my expectation that removal of all items not specifically authorized for the operation and maintenance of the sewage treatment facility be accomplished by December 31, 2012."
Werthmann repeated the specific restrictions contained in the lease and explained, "Items that require corrective action and/or removal include, but are not limited to; items stored for auction, multiple storage buildings, FEMA trailer, marine vessels, generators, undercarriage water station, maintenance shop, multiple dumpsters and retention pond."
Werthmann provided proof of the Government's stance on such uses on their property in a letter dated January 1987 to then Congressman Charles Rose from Lewis D. Walker, Deputy for Environment, Safety and Occupational Health for the U.S. Army. That letter stated, "The Sunny Point buffer zone is prescribed by the Department of Defenses' Explosives Safety Standards based on the maximum anticipated quantity of explosives to be handled at the terminal. Personnel and property outside the buffer zone are therefore not in danger of serious injury or damage. Likewise, the prohibition on non-Department of Defense buildings within the buffer zone is prescribed by Department of Defense policy and can not be modified or set aside without jeopardy to public safety or constraint of the terminal's essential defense mission."
The letter states, "While I appreciate the real estate constraints of the peninsula beach communities, I am enjoined by law to deny construction within the buffer zone. Under 10 U.S. Code 172, the Armed Forces are required to keep supplies of ammunition and components properly dispersed and stored to prevent hazardous conditions from arising to endanger life and property inside or outside of military reservations. The Department of Defense Explosives Safety Standards implement this statutory responsibility and were derived from standards used by Federal, state and local agencies."
Town Manager Tim Owens explained earlier this week, "There doesn't seem to be a lot of flexibility" from the Army regarding use of the land.
He said a meeting is scheduled for later this week with officials from Sunny Point and the Army Corp of Engineers along with Mayor Ray Rothrock and Councilman Lonnie Lashley to further discuss the matter.
Councilman Steve Shuttleworth explained Tuesday July 17, that if the lease can't be amended, "We will have to find a place to put all that stuff. If we have to get rid of the Town garage, we might have to outsource that" or find other land to purchase or lease outside of the buffer zone.
On July 12, Council member Sarah Friede explained during a morning Council meeting, "My impression from the call was that the human beings out there on a regular basis was the primary concern for them. I also got the feeling from that call that they really thought the waste water treatment plant could be operated without human beings there. I think we are already, in their opinion, pushing the limits by having people at the wastewater treatment plant. I don't think that's reasonable of them to expect the plant can run itself and that we somehow can run it remotely. That in and of itself is of substantial concern to them. If we don't educate that we are removing all of the other people that are there I don't think we stand a chance. I think they are already irritated that we do in fact have people out there running that wastewater treatment plant and they know that that was specifically authorized but they probably feel like they are under the gun. We know they are trying to get increased capabilities and the more people that are out there the less likely they will be able to expand their operation which is really ultimately what they want."
She explained, "So Gene's five guys out there and then two mechanics out there all of the time are standing in the way of them being able to expand their facility and I think that's why they are pushing so hard. We have to get as many people out of there as we can" and it will be hard to make progress with 27 guys coming in and out every day.
Owens said he feels the additional buildings are the primary concern.
Councilman Lonnie Lashley said there is space available in the recreation center upstairs and a large adjacent parking lot where vehicles could be parked. He said, "There's a parking lot over here where we were going to put a skate park. We could put automobiles there. We could put a building there if we wanted to. That's our land."
Owens reminded Council of the total volume of employees, vehicles and equipment involved and said it would not fit on land at Town Hall.